MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and thus unentitled to Supplemental Security Income ("SSI"). This case is before the Court upon Plaintiff's Statement of Errors (doc. 7), the Commissioner's memorandum in opposition (doc. 9), Plaintiff's reply (doc. 10), the administrative record (doc. 6),
Plaintiff filed for SSI on April 12, 2011. PageID 203-09. Plaintiff claims disability as a result of a number of impairments including, inter alia, bipolar disorder, depressive disorder, and an anxiety disorder. PageID 61.
After initial denials of his application, Plaintiff received a hearing before ALJ Paul Gaughen on March 11, 2013. PageID 78-109. The ALJ issued a written decision on May 31, 2013 finding Plaintiff not disabled. PageID 59-70. Specifically, the ALJ's findings were as follows:
PageID 61-69.
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 40-42. Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007) (noting that, "[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days from the Appeals Council's notice of denial in which to file his appeal").
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 62-68. Plaintiff, in his Statement of Errors, sets forth a detailed summary of the record evidence. Doc. 7 at PageID 624-28. The Commissioner, in response, defers to the ALJ's recitation of the relevant medical evidence and presents no specific objection to Plaintiff's summary. Doc. 9 at PageID 641. Accordingly, except as otherwise noted in this Report and Recommendation, the undersigned incorporates Plaintiff's undisputed summary and the ALJ's recitation of the evidence.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
To qualify for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 1382c(a)(3)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are "medically determinable"; expected to result in death or which have lasted or can be expected to last for a continuous period of not less than twelve months; and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful work" that is available in the regional or national economies. Id. §§ 1382c(a)(3)(A), (B).
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 416.920(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In his Statement of Errors, Plaintiff argues that the ALJ: (1) erred in finding that he did not meet or equal Listing § 12.05(C); and (2) is bound by the doctrine of res judicata as set forth in Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). Doc. 7 at PageID 622. Having reviewed the administrative record and the parties' briefs, and also having carefully considered the ALJ's analysis leading to the non-disability finding here at issue, the Court finds that the ALJ carefully reviewed the record, reasonably concluded that Plaintiff's impairments do not meet or equal Listing § 12.05, and properly determined that res judicata does not apply. Thus, as more fully explained herein, the Court finds the ALJ's decision supported by substantial evidence and recommends that the Court affirm the ALJ's non-disability finding.
The Court will address Plaintiff's second assignment of error initially because it raises the issue of the proper standard of review. Plaintiff argues that the doctrine of res judicata, as set forth in Drummond, requires a disability finding. Doc. 7 at PageID 633-35. In Drummond, the Sixth Circuit held that Social Security claimants and the Commissioner are barred from relitigating issues that have previously been determined at the administrative level. Drummond, 126 F.3d at 842. Drummond mandates that, absent evidence that a claimant's condition has improved, findings issued by an ALJ as part of a prior disability determination are binding on an ALJ in a subsequent proceeding. Id. at 841.
Here, Plaintiff was previously approved for SSI benefits and received such benefits until his incarceration in 2008,
The undersigned finds res judicata inapplicable to the circumstances presented here. Notably, Plaintiff fails to bring to the Court's attention his February 2010 application for SSI benefits, which was denied at the agency level in December 2010. PageID 59, 112. Plaintiff did not appeal that decision, thereby making the December 2010 non-disability determination final. Id.; 20 C.F.R. § 416.1405 ("[a]n initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination"). Therefore, even though Plaintiff was found disabled prior to 2008, he was subsequently found not disabled in an agency proceeding in 2010. Insofar as Plaintiff had a res judicata argument regarding his pre-incarceration approval for SSI benefits, it should have been raised in conjunction with his 2010 application. Whether or not such an argument was raised at that time, it is now moot in light of the December 2010 non-disability finding, rendered final by Plaintiff's failure to appeal.
Accordingly, in light of the intervening non-disability determination in December 2010, the undersigned finds the ALJ did not err in declining to apply Drummond to Plaintiff's previous approval for SSI benefits. See Messer v. Astrue, No. 09-342-DLB, 2010 WL 4791956, at *4-5 (E.D. Ky. Nov. 18, 2010).
Plaintiff next argues that the ALJ erred at Step Three of the sequential benefits analysis in concluding that his impairments do not meet or medically equal Listing § 12.05(C). Doc. 7 at PageID 630-33.
The Listing of Impairments "describes impairments the SSA considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 653 (6th Cir. 2009) (internal quotations omitted). "Because satisfying the [L]istings yields an automatic determination of disability . . . the evidentiary standards [at Step Three] . . . are more strenuous than for claims that proceed through the entire five-step evaluation." Peterson v. Comm'r of Soc. Sec., 552 F. App'x 533, 539 (6th Cir. 2014). Plaintiff has the burden of proving that he or she meets or equals all of the criteria of a listed impairment. Evans v. Sec'y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987).
Listing § 12.05 provides in relevant part:
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. In other words, for a claimant to meet Listing § 12.05, he or she must meet the criteria under subsection A, B, C, or D, as well as "satisfy the diagnostic description" in the introductory paragraph, i.e., "(1) subaverage intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations." Hayes v. Comm'r of Soc. Sec., 357 F. App'x 672, 675 (6th Cir. 2009) (internal citations omitted).
"The adaptive skills prong evaluates a claimant's effectiveness in areas such as social skills, communication skills, and daily-living skills." Id. at 677 (internal citation omitted). Although Listing § 12.05 does not define "adaptive functioning," another portion of the Listings defines "adaptive activities" as "cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1). The plain language of the Listing does not identify how severe limitations must be to qualify as "deficits in adaptive functioning." Pendleton v. Comm'r of Soc. Sec., No. 1:10cv-650, 2011 WL 7070519, at *11 (S.D. Ohio Dec. 23, 2011). Nevertheless, case law from the Sixth Circuit and other federal courts suggests that a claimant must have significant deficits to satisfy the Listing. See Farnsworth v. Comm'r of Soc. Sec., No. 2:13-cv-923, 2015 WL 1476458, at *9 (S.D. Ohio Mar. 31, 2015) (collecting cases).
Here, with regard to Listing § 12.05(C), the ALJ found that Plaintiff's "cognitive deficits [do not] establish `significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested' before age 22." PageID 65. Substantial evidence supports the ALJ's Listing analysis. Although Plaintiff arguably satisfied the criteria under subsection (C) — with a Full Scale Intelligence Quotient ("IQ") of 67, PageID 332, and mental health impairments that the ALJ found to be "severe" at Step Two, PageID 61 — the ALJ reasonably concluded that Plaintiff did not meet the "deficits in adaptive functioning" prong in the introductory paragraph of Listing § 12.05. PageID 65.
First, the ALJ specifically found that Plaintiff was not credible. PageID 67. The ALJ discussed several issues which detract from Plaintiff's credibility regarding his functional abilities. See PageID 64. For example, the ALJ noted that, during a 2002 consultative exam, Plaintiff denied being able to read, yet was able to independently fill out paperwork during the interview. PageID 64, 338, 340. The ALJ also noted the discrepancy between Plaintiff's testimony — that he does no chores — with statements in the record to the contrary. PageID 67, 91, 315 (wherein Plaintiff reported that he did laundry, cleaned, prepared meals, read, performed odd jobs, and went to the store), 338 (wherein Plaintiff stated that he took public transportation, prepared meals, washed dishes, cleaned, and grocery-shopped). Notably, Plaintiff does not challenge the ALJ's credibility determination. See doc. 7; see also Robinson v. Comm'r of Soc. Sec., No. 2:13-cv-530, 2014 WL 3419309, at *9 (S.D. Ohio July 10, 2014).
Second, consultative examiner Giovanni M. Bonds, Ph.D.'s November 2010 report is substantial evidence supporting the ALJ's conclusion.
For the foregoing reasons, the Court finds no merit to Plaintiff's two assignments of error, and further finds the ALJ's non-disability determination supported by substantial evidence.
1. The Commissioner's non-disability finding be found supported by substantial evidence, and
2. This case be
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
